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Dozens of women and their children, many fleeing poverty and violence in Central America, arrive at a bus station after being release by Customs and Border Protection on June 22 in McAllen, Texas. | Spencer Platt/Getty Images

Suit could reunite families separated by Trump policy

But a San Diego-based federal judge is unlikely to rule before Wednesday.

Immigrant rights advocates are banking on a lawsuit pending in San Diego to force the Trump administration to reunite immigrant parents with thousands of children separated from them at the border, but the judge handling the case signaled on Friday that he did not plan to take action until next Wednesday at the earliest.

During a telephone hearing, a lawyer for the American Civil Liberties Union implored U.S. District Court Judge Dana Sabraw to act quickly to mitigate the damage being done by the surge in family separations caused after the Trump administration initiated a zero-tolerance policy aimed at charging all adults who cross the border illegally.

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“There are about 2,000 kids now who have been separated,” the attorney, Lee Gelernt, said in an emotional presentation. “They are — range from little babies, less than a year old, to toddlers to young children and they are suffering immeasurably. Every night, we are hearing stories about children going to sleep asking whether they’re ever going to see their parents again, clutching pictures of their parents. … It’s just become a complete mess with a thousand, over 2,000 people separated. Parents can’t find the children. … I think it’s, you know, a humanitarian crisis of the utmost proportion.”

Gelernt urged Sabraw to act “tonight or over the weekend,” requiring the government to reunite all children younger than 5 within 10 days, and older children within 30 days.

“There is really an urgent need to set a timetable,” the ACLU lawyer said. “They tell the parents, ‘We’re just taking the child for a bath,’ and the child is never seen again. … The situation is simply intolerable at this point.”

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Sabraw, an appointee of President George W. Bush, made clear that he had seen many of the news reports about anguished parents separated from their children. However, the judge said he was uncomfortable ruling based on news stories alone.

“What’s happened in this case is unusual in that the case has developed in the media,” Sabraw said. The judge said that if he issues an injunction, “there has to be some evidentiary basis for it other than newspaper and television and radio accounts.”

Sabraw ordered the phone hearing on Friday in response to President Donald Trump’s executive order this week purporting to reverse the family-separation policy in favor of a new effort to detain families accused of crossing the border illegally. The judge has been overseeing a class-action suit filed by the ACLU in February over asylum seekers being separated from their children.

A Justice Department attorney handling the case for the Trump administration, Sarah Fabian, had few answers for the judge about how the president’s new executive order claiming to halt family separation was being carried out.

“How is that going to work?” Sabraw asked, inquiring whether the plan now was to hold children along with their parents even as the parents face criminal prosecution.

“I’m not sure I can answer all of those questions today, Your Honor,” Fabian said. “I think some of the implementation questions are still underway, and I just don’t have the information to answer all of those questions. … I can’t speak to that today.”

The judge also pressed the government lawyer on whether there was any system in place for the officials detaining a parent to notify those holding the child when the parent is about to be released, or to notify parents about where their children are being held.

“Is there any affirmative reunification process that the government has in place once a parent and child are separated?” Sabraw asked.

“Whether there is in light of additional separations, whether there are additional procedures could be put in place to improve those procedures or expedite those procedures, I think is the subject of ongoing discussions,” Fabian replied. “I don’t think that I can make any representation today that would be sufficient for the court to rely on.”

Sabraw, who earlier this month rejected a government motion to dismiss the suit, sounded skeptical about the government’s stance. He said there appeared to be “a lack of communication” among government agencies resulting in prosecutors, courts and jailers having no idea how to reunify parents with their children.

Fabian had few assurances to offer on that front, either.

“I can’t say today there is a formalized process for that,” she said. “I can say that efforts are being made in that direction.”

While the ACLU pressed for immediate action, Sabraw said he wanted new filings from both sides in the case, with the civil liberties group submitting more details and a proposed injunction by Monday and the federal government responding by Wednesday. “It’s still very expedited,” the judge said, adding that he hoped to rule “shortly” after those filings were complete.

The hearing in the San Diego case came amid uncertainty about legal challenges to Trump’s new family detention policy, if it moves forward.

The key legal hurdle for that policy is likely to be a decades-old consent decree that Trump officials say prevents the detention of children in immigration custody for more than 20 days, with rare exceptions. Trump’s order directed the Justice Department to seek a change to that settlement.

Government lawyers submitted that request on Thursday, but lawyers representing immigrant children asked for another 10 days to respond to the proposal.

The attorneys general of at least nine states have also signaled plans to sue over Trump’s policy, although sources have suggested that the planned cases are morphing as lawyers adjust to the president’s announcement on Wednesday and to confusing signs about what the administration will do next.